(dissenting).
I think this case should be affirmed, therefore I must respectfully dissent from the judgment rendered by the majority.
*428In this case, on the issue of a verbal contract of sale of the south 75 feet of Lot 7, in Block No. 10 in the Pool Annex to the town of Odessa, Texas, the issue is raised that the defendant represented to plaintiffs that the north boundary line of said south 75 feet of lot 7 was some 20 or 25 feet north of the house which was on part of said south 75 feet of said lot. It was established by the verdict that the representation was relied upon by the plaintiffs and was material. However, in confirmation of this verbal contract to convey the south 75 feet, or perhaps more properly, subsequent to said verbal contract defendant conveyed all of lot 7 to plaintiffs. Now this conveyance most certainly included the area plaintiffs claimed that defendant failed to convey to them. It contained more land than defendant was to- convey to them under the verbal contract. It appears to me that plaintiffs’ cause of action, if any they had, was on account of defendant not having title to the land included in the deed, and not as alleged by him that the deed failed to cover the land lying immediately north of the house in question. The quantity of the land conveyed must be determined by the clause in the deed. Bellamy v. McCarthy, 75 Tex. 293, 12 S.W. 849. Furthermore, plaintiffs plead as follows:
“That in fact and in truth the north boundary line is something like 18 feet south of the line pointed out as above by the defendant, and the true surveyed line as reflected in the deed delivered runs under or across the house, leaving a portion of the residence on that portion of the lot heretofore sold by the said defendant to. another party.”
Now the deed is a general warranty in form and conveys all of the lot in question to plaintiff. Again plaiiitiffs plead:
“That after concluding the bargain and agreeing upon the terms, as well as upon the position and extent of the lot, the said defendant prepared a deed and delivered same to plaintiffs and such deed did not include the following tract of land upon which tract of land a part of the four room house is situated.”
This allegation is disproved by the general warranty deed introduced in evidence by the plaintiffs.
Plaintiffs further plead as follows:
“During such negotiations defendant did not own the lot north of the line A-B (representing the north line of the south 75 ft. of the lot in question) but had sold the north part of this lot including a part of the house. The defendant took back this property from the parties and then could have deeded to plaintiffs the property pointed out, that is-on line A-B, but he failed to do so and re-sold a portion of this property.”
Now if this allegation be true, and in my opinion plaintiffs are estopped to deny it, under the warranty title passed to- plaintiffs.
Plaintiffs may have had) a cause of action on account of defendant representing that he had title to the tract lying immediately north of the north line of the south 75 feet of the lot, and that while same was included in the deed defendant had no title thereto, but such is not the theory of their pleading. Plaintiffs’ pleading affirmatively shows that they obtained title to all the land contemplated by the verbal contract existing prior to the execution of the deed; received title to the very tract which according to their theory was represented to be included in the bounds of the deed. The statement that it is affirmatively shown by their pleadings that they obtained title is perhaps not correct. Their pleadings, taken in connection with the deed dated February 6, 1946, introduced in evidence by plaintiffs,' showed this fact. The warranty in the deed was operative to confer upon plaintiffs the subsequently acquired title of defendant. In any event there is no showing that plaintiffs (appellants) do not have title to all the land they claimed should have been conveyed to them.
In my opinion the trial court entered the only lawful judgment it could have rendered under the pleading and evidence. Appellee does not complain as to the nominal damages provided. This being the case, this court exceeds its power in reversing the judgment.